IN THE SUPREME COURT OF IOWA
No. 13–1202
Filed March 4, 2016
STATE OF IOWA,
Appellee,
vs.
TRENT D. SMITH,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County,
Jeffrey L. Harris, Judge.
Defendant appeals from conviction for domestic abuse assault
causing bodily injury. DECISION OF COURT OF APPEALS AFFIRMED
IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT
REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Melinda J. Nye,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant
Attorney General, Thomas J. Ferguson, County Attorney, and Jeremy
Westendorf, Assistant County Attorney, for appellee.
2
CADY, Chief Justice.
In this appeal from a conviction for domestic abuse assault, we
consider whether hearsay statements made to an emergency room nurse
and doctor by a victim that identified the perpetrator of the attack were
admissible under Iowa Rule of Evidence 5.803(4) as statements made for
purposes of medical diagnosis or treatment. The court of appeals found
the hearsay statements were properly admitted at the trial. On our
review, we conclude there was insufficient foundation to admit the
statements under rule 5.803(4). We affirm the decision of the court of
appeals in part and vacate in part, reverse the decision of the district
court, and remand for further proceedings.
I. Background Facts and Proceedings.
On June 9, 2012, at 1:03 a.m., the Black Hawk county emergency
call center received a 911 call from M.D. She gave her address and said,
“Just get here, thank you, please!” A short time later, M.D.’s mother
called the center on a nonemergency line. She told the phone operator
that M.D. asked her to call the police to report that Trent Smith had
threatened M.D. and that M.D. was afraid of him.
Two officers were dispatched to M.D.’s residence. They found M.D.
sitting in a car outside the residence with her five-year-old daughter and
a dog. The officers checked the residence for intruders and began their
investigation by interviewing M.D.
M.D. told the officers she had been upstairs and after hearing a
sound was “hit” by something when going downstairs in the dark to
investigate. She also said she lost consciousness after she was kicked in
the head. She told the officers she believed the assailant had entered her
residence through a locked door. M.D. eventually identified her assailant
as “Trent Daniel,” whom dispatch officers later identified as Trent Smith.
3
M.D. said Smith did not live at her residence but had been abusing her
for ten years. She mentioned one prior assault when Smith beat her
after he was released from jail following an arrest for domestic abuse.
The officers took M.D. to the emergency room of a local hospital
around 2:40 a.m. She was treated by a doctor and a nurse for her
injuries. The doctor found M.D. to be “in a moderate amount of distress”
and “extremely shaken up.” The nurse asked M.D. to explain what had
happened to her. M.D. responded that she was “assaulted by her baby’s
daddy around midnight.” She told the nurse that she had been kicked in
the head and right arm, and she felt that her front teeth were loose. The
nurse also pursued several standard screening questions at some point
during the evening. Three questions pertained to domestic abuse. In
response to these questions, M.D. indicated she did “feel afraid
of/threatened by someone close to me.” She also responded she had
“been hurt by someone.” She further agreed that “someone is taking
advantage of [her].”
In response to an inquiry by the doctor about how she sustained
her injuries, M.D. said she had been assaulted by her child’s father.
However, the doctor did not make any domestic abuse diagnosis or
render any treatment for emotional or psychological injuries based on the
identity of the perpetrator. The identity of the assailant or the effects of
domestic abuse were not mentioned as a part of any treatment or
diagnosis. The treatment consisted of radiology testing and other
medical care to those areas of the body that had sustained physical
injury. The diagnosis by the doctor pertained solely to the physical
injuries sustained by M.D. It was limited to a closed head injury,
cervical strain, facial contusion, and arm contusions.
4
M.D. was released from the hospital around 5 a.m. She was
prescribed pain and antianxiety medications. The officers took her to the
law enforcement center to obtain a written statement. An officer wrote a
statement based on M.D.’s statements earlier in the night, but M.D.
refused to acknowledge it with her signature.
Smith was subsequently charged with domestic abuse assault with
intent to cause serious injury and domestic abuse assault causing bodily
injury, both in violation of Iowa Code section 708.2A(2) (2011). At a
pretrial hearing, the State informed the district court that M.D. intended
to recant her statements identifying Smith as her assailant. The State
further informed the court it intended to prove Smith was the assailant
through the statements made by M.D. to the officers and medical
personnel. In particular, the State indicated they would offer M.D.’s
statements of identification made to the emergency room nurse and
doctor under the medical treatment and diagnosis exception to the rule
against hearsay. In response, Smith claimed the statements were not
part of any medical diagnosis or treatment. The district court ultimately
determined the identification statements were admissible at trial under
the medical treatment and diagnosis exception to the rule against
hearsay. It also determined M.D.’s statements to police were admissible
at trial under the excited-utterance exception to the rule against hearsay.
The State never argued the statements to the nurse and doctor were also
admissible as excited utterances, and the district court did not rely on
the excited-utterance exception in admitting them.
The case proceeded to trial. Law enforcement officers and medical
personnel at the hospital testified at trial for the State, as well as a
domestic abuse expert. The officers and medical providers recalled the
statements M.D. made to them the night of the incident that identified
5
Smith as her assailant. There was no testimony that M.D. was told how
the questions related to her treatment or diagnosis, and there was no
testimony how they were used or needed by medical providers in her
treatment or diagnosis. The domestic abuse expert explained the
dynamics of domestic abuse, including the control exercised by the
perpetrator. M.D. testified for Smith at trial. She said she was injured
when she fell from a trampoline after drinking in excess.
The jury found Smith guilty of domestic abuse assault and
domestic abuse assault causing bodily injury. Following sentencing,
Smith appealed. He claimed the district court erred in admitting the
hearsay statements made to police and medical personnel. He also
claimed the district court erred in failing to merge the two convictions for
purposes of sentencing.
We transferred the case to the court of appeals. It found the
district court erred by admitting M.D.’s statements to police as excited
utterances. However, it found the district court did not err in admitting
M.D.’s statements made to the nurse and doctor as statements for
purposes of medical diagnosis or treatment. As a result, the court of
appeals found Smith was not prejudiced by the admission of the hearsay
statements to police. It merged the convictions and affirmed the
judgment and sentence for domestic abuse assault causing bodily injury.
Smith sought, and we granted, further review. The primary claim
asserted by Smith is the statements of identity made to the doctor and
nurse were inadmissible under the medical treatment and diagnosis
exception. The State did not seek further review from the decision by the
court of appeals that the statements made to police were not admissible
as excited utterances. Accordingly, that decision stands as the final
determination on that issue. See State v. Guerrero Cordero, 861 N.W.2d
6
253, 258 (Iowa 2015) (addressing on further review only one of four
issues raised on appeal).
II. Scope of Review.
Although we normally review evidence-admission decisions by the
district court for an abuse of discretion, we review hearsay claims for
correction of errors at law. State v. Paredes, 775 N.W.2d 554, 560 (Iowa
2009). “[T]he question whether a particular statement constitutes
hearsay presents a legal issue,” leaving the trial court no discretion on
whether to admit or deny admission of the statement. State v. Dullard,
668 N.W.2d 585, 589 (Iowa 2003).
With respect to the issue now raised on further review involving
the district court’s decision to admit at trial the statements of identity
made to the medical providers, we recognize we may affirm a ruling on
the admission of evidence by using a different rationale than relied on by
the district court. See DeVoss v. State, 648 N.W.2d 56, 62 (Iowa 2002).
However, the rule described in DeVoss is discretionary, and we must be
careful not to exercise our discretion to decide an issue concerning the
admissibility of evidence on an alternative ground when the parties have
not had an opportunity to properly develop or challenge the foundation
for the evidence.
III. Admission of Statements Identifying Perpetrator.
“ ‘Hearsay’ is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Iowa R. Evid. 5.801(c). Hearsay is not
admissible at trial subject to certain exceptions and exclusions. See id.
r. 5.802.
The statements at issue in this case—third-party accounts of
identification statements made by M.D.—are hearsay. The question is
7
whether they are admissible under an exception to the rule against
hearsay.
The general rationale for the rule against hearsay is that out-of-
court statements are inherently unreliable because false perception,
memory, or narration of the declarant cannot be addressed through the
admission of an oath or exposed through cross-examination of the
declarant. See 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s
Federal Evidence § 802.02[3], at 802-6 to -7 (Mark S. Brodin 2d ed.
2015) [hereinafter Weinstein]. Thus, the exceptions to the rule against
hearsay generally overcome this rationale through the identification of
circumstances surrounding the issuance of the statement that
demonstrate its reliability and necessity. See id. § 802.03[3] [a], at 802-
8.
One exception to the rule against hearsay relates to statements
made for the purposes of medical diagnosis and treatment. Iowa R. Evid.
5.803(4). This exception applies to
[s]tatements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.
Id. The rationale for the exception is that statements made by a patient
to a doctor for purposes of medical diagnosis or treatment are “likely to
be reliable because the patient has a selfish motive to be truthful.”
Weinstein § 803.06[1], at 803-41 to -42; see 7 Laurie Kratky Doré, Iowa
Practice Series: Evidence § 5.803:4, at 951–52 (2015–2016 ed. 2015)
[hereinafter Doré]. This motive exists because the effectiveness of the
medical treatment rests on the accuracy of the information imparted to
the doctor. Weinstein § 803.06[1], at 803-41 to -42. A patient
8
understands that a false statement in a diagnostic context could result in
misdiagnosis. State v. Tornquist, 600 N.W.2d 301, 304 (Iowa 1999),
overruled on other grounds by State v. DeCamp, 622 N.W.2d 290 (Iowa
2001). Thus, the circumstances of statements made for diagnosis and
treatment provide “special guarantees of credibility” and justify the
exception to the rule against hearsay. State v. Hildreth, 582 N.W.2d 167,
169 (Iowa 1998).
The medical diagnosis or treatment exception imposes two
requirements. First, the exception applies to statements “made for
purposes of medical diagnosis or treatment.” Iowa R. Evid. 5.803(4).
Second, the statements must describe “medical history, or past or
present symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as reasonably
pertinent to diagnosis or treatment.” Id. Thus, the first requirement is
directed at the purpose and motive of the statement, and the second
requirement is directed at the content or description of the statement.
Yet as to both requirements, the statements must also “be reasonably
pertinent to diagnosis or treatment.” Doré § 5.803:4, at 952. These
requirements track with the two-part test we adopted in State v. Tracy for
establishing the admission of hearsay statements identifying a child
abuser under the exception for medical diagnosis and treatment. 482
N.W.2d 675, 681 (Iowa 1992) (“[F]irst[,] the declarant’s motive in making
the statement must be consistent with the purposes of promoting
treatment; and second, the content of the statement must be such as is
reasonably relied on by a physician in treatment or diagnosis.” (quoting
United States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985))).
The fighting issue in this case is whether the portion of the
statement made to a doctor or nurse that identifies the person who
9
caused or was the source of the injury is reasonably pertinent to
diagnosis or treatment. This is a question that can be vexing for judges
and lawyers. Normally, the identity of the perpetrator of physical injuries
is not understood to be necessary information for effective medical
treatment. United States v. Joe, 8 F.3d 1488, 1494 (10th Cir. 1993).
Thus, these statements generally lack the inherent reliability of
statements by patients to doctors for medical diagnosis or treatment.
Colvard v. Commonwealth, 309 S.W.3d 239, 245–46 (Ky. 2010) (finding
no inherent trustworthiness in identification statement not arising from a
desire for effective treatment). When the identity of the perpetrator of an
injury is not necessary information for effective medical treatment, a
declarant could remain motivated to truthfully describe the cause of
injuries while being motivated to suppress or twist the identity of the
perpetrator towards their own ends. See State v. Long, 628 N.W.2d 440,
444 (Iowa 2001) (noting ulterior motives aside from treatment may affect
statements of causation made to medical providers). In other words, self-
motivation to be truthful that supports the admission of statements
under the exception may be absent when the identity of the perpetrator
is not necessary or pertinent to the medical diagnosis or treatment. See
id. Accordingly, each assertion sought to be admitted that is contained
within a broader statement made to medical providers must meet the
requirements of the exception to be admissible.
We have identified some circumstances when statements that
identify perpetrators are admissible under Iowa Rule of Evidence
5.803(4). One circumstance involves the identity of perpetrators of child
abuse. See Tracy, 482 N.W.2d at 681–82. When the “alleged abuser is a
member of the victim’s immediate household, statements regarding the
abuser’s identity are reasonably relied on by a physician in treatment or
10
diagnosis.” Id. at 681. The emotional and psychological injuries of such
abuse are treated by the doctor along with the physical injury. Id. The
doctor is also often concerned about the possibility of recurrent abuse.
Id. In Tracy, the doctor followed a standard dialogue for purposes of
diagnosis and treatment, and the victim understood that the doctor
needed truthful responses to provide treatment. Id. This circumstance
is key to admitting statements of identity. The circumstances need to
show that the victim’s statements are “not prompted by concerns
extraneous to the patient’s physical or emotional problem.” Hildreth, 582
N.W.2d at 169–70.
The State argues that cases of domestic abuse fall within the same
rule that commonly allows statements of the identity of perpetrators in
cases of child abuse to be admitted. It argues the circumstances of this
case fit within the reasoning behind the child-abuse exception because
they do not show M.D. was motivated to be untruthful when she
identified Smith as the assailant.
The State’s overarching argument suggests that a categorical rule
has emerged from rule 5.803(4) that admits statements of identity made
to medical personnel by victims of child abuse and that should also
apply to victims of domestic abuse. Yet, no such categorical rule for
victims of child abuse has been recognized. While it is common for
statements of identity made by victims of child abuse to be admitted
under rule 5.803(4), the statements are not admitted simply because
they fall within a category of statements made to doctors or medical
personnel by victims of abuse. Instead, these statements are admitted
only when there is evidence that the statements of identity were made by
a child-abuse victim for purposes of diagnosis or treatment by a doctor or
medical provider and the identity was pertinent to the diagnosis or
11
treatment. See State v. Dudley, 856 N.W.2d 668, 676 (Iowa 2014) (“The
child must make the statements to a trained professional for the
purposes of diagnosis or treatment to be admissible under rule
5.803(4).”); Doré § 5.803:4, at 957–58 & nn.22–23 (collecting cases and
contrasting how courts apply the rule); see also State v. Neitzel, 801
N.W.2d 612, 621–22 (Iowa Ct. App. 2011) (discussing the steps taken by
health care professionals to ensure truthfulness and the need to assess
safety risks and the child’s need for further counseling). Eliciting the
identity of a perpetrator of child abuse can be a normal aspect of medical
treatment and diagnosis for child abuse victims; however, the value of
that information is established by the foundational testimony of the
doctors and medical providers in each case, and that testimony explains
the pertinence of the perpetrator’s identity to the diagnosis and
treatment of the victim in the uinique circumstances of each case. See,
e.g., Hildreth, 582 N.W.2d at 169–70 (setting foundation for social
workers’ diagnosis of child’s emotional disturbance resulting from sexual
abuse). The need to establish foundation for the admission of evidence
under rule 5.803(4) is compatible with the standard approach to the
admission of evidence under most other rules of evidence. In other
words, proper foundation must normally be established before evidence
may be admitted. See State v. Tompkins, 859 N.W.2d 631, 639 (Iowa
2015) (requiring the State to lay a proper foundation before finding
hearsay statements identifying a domestic abuse assailant and his
actions admissible). There is no rule that provides a categorical
exception for victims of child abuse or domestic abuse.
The profound and serious problem of domestic abuse in this nation
and this state does not escape us in our analysis of this case. These
problems are significant for victims of domestic abuse and the children
12
who have suffered by witnessing the abuse. The consequences to these
victims and society as a whole are diverse and immense. These are
problems and consequences this court has been addressing for decades.
See generally Final Report of the Supreme Court Task Force on Courts’ and
Communities’ Response to Domestic Abuse (1994) (compiling statistics on
the incidence of domestic abuse in Iowa, identifying the courts’ role, and
formulating recommendations to address the problem from the judicial
standpoint). We are also aware that the underlying dynamics of
domestic abuse can create many obstacles in the criminal prosecution of
perpetrators. See Laurie S. Kohn, The Justice System and Domestic
Violence: Engaging the Case but Divorcing the Victim, 32 N.Y.U. Rev. L. &
Soc. Change 191, 200–06 (2008) (discussing the influence of outside
factors on victims’ behavior both before and after reporting abuse and
affecting their cooperation with the justice system). These complex
dynamics can lead many victims to refrain from reporting abuse and
then further lead to the recantation of statements of identity prior to
trial. See id. at 203–05 (noting victims may ask to drop the criminal
case, refuse to testify, recant, or downplay their risks); Jennifer L.
Truman & Rachel E. Morgan, U.S. Dep’t of Justice, Nonfatal Domestic
Violence, 2003–2012, at 9 & tbl. 8, http://www.bjs.gov/content/pub/
pdf/ndv0312.pdf (revealing only around fifty-five percent of domestic
violence is reported to police). Nevertheless, our role in reviewing the
admission of the hearsay statements at trial in this case is not to inject
this policy into the analysis to create a new rule of evidence. Our
authority to establish rules to govern the trial of a case exists
independent of our authority to decide issues presented to us on appeal
in cases. Today, we only address the issue of admission of statements of
13
identity through our existing rule of evidence. Our role is to interpret the
rule as it is written and apply the hearsay exception as it exists.
Moreover, any categorical evidentiary rule must carefully consider
the competing interests at stake. These interests include those found in
the constitutional right of people accused of crimes to be confronted by
their accusers. See, e.g., State v. Bentley, 739 N.W.2d 296, 300–01 (Iowa
2007) (weighing accused’s confrontation right against the interests of a
child abuse victim). They are also found in the concept of fundamental
fairness. See Iowa R. Evid. 5.102. The sheer complexity of domestic
abuse would need to be considered, including both the interests of the
victim and the rights of the accused. It has been observed that “there is
neither a ‘typical’ victim of domestic violence, nor ‘typical’ responses, nor
‘typical’ circumstances in which such violence occurs.” Jane C. Murphy
& Robert Rubinson, Domestic Violence and Mediation: Responding to the
Challenges of Crafting Effective Screens, 39 Fam. L.Q. 53, 58 (2005)
(footnotes omitted). Thus, any categorical rule cannot be adopted that
would “ignore[] variables such as the seriousness of the assault, the
frequency of the abuse against the victim, the type of domestic
relationship, or the presence or absence of emotional or psychological
harm.” State v. Robinson, 718 N.W.2d 400, 407 (Minn. 2006) (refusing to
adopt a categorical exception to rule 803(4) in domestic violence cases).
We understand how the identity of an abuser could be pertinent to
the treatment of a domestic abuse victim by a doctor. Domestic abuse
victims suffer from far more than physical injuries. Emotional and
psychological injuries are also inflicted with an assault, and it is
understandable how the depth and breadth of those injuries would vary
depending on the identity of the abuser. As a result, we see how
complete medical treatment could normally include information on the
14
identity of the abuser. Yet, until a categorical rule exists, this
understanding must be supplied from the testimony of doctors in the
form of foundation pursuant to the broad rule providing for the
admission of hearsay statements for all types of medical treatment. See
Joe, 8 F.3d at 1494 & n.6 (citing to doctor testimony that established
foundation despite finding there is general need for identity knowledge in
domestic abuse cases).
In this light, we reject the argument by the State that statements of
identity by victims of domestic abuse should be categorically admissible
because such statements are now commonly admitted in cases of child
abuse. Instead, we hold that in each case, the trial court must, as with
other statements made during medical diagnosis and treatment, apply
the test we adopted in Tracy to determine whether the statements made
in that case should fall within this exception to the hearsay rule. 1 482
N.W.2d at 681. The State, as the proponent of the evidence, has the
burden to show the statements fit within rule 5.803(4). 2 Long, 628
N.W.2d at 443.
1Several other courts also examine whether criteria similar to our Tracy test
have been met before admitting identity statements. E.g., United States v. Bercier, 506
F.3d 625, 632 (8th Cir. 2007) (requiring foundation that the statements were essential
to diagnosis and treatment in domestic sexual abuse case); Robinson, 718 N.W.2d at
407 (holding domestic abuse victim’s identification of her assailant inadmissible
without sufficient evidentiary foundation establishing the identity was reasonably
pertinent to diagnosis or treatment); State v. Moen, 786 P.2d 111, 118–21 (Or. 1990)
(en banc) (examining prior statements made concerning domestic abuse causing
victim’s depression to determine whether they met the foundational criteria of
pertinence to medical diagnosis in murder case); Oldman v. State, 998 P.2d 957, 961–62
(Wyo. 2000) (utilizing the Renville criteria to determine the identity in a domestic abuse
case was pertinent for treating bite marks for infectious condition).
2We recognize that statements made to emergency personnel in order to obtain
medical treatment can also fall within the excited-utterance exception to the hearsay
rule. Iowa R. Evid. 5.803(2); State v. Harper, 770 N.W.2d 316, 319–20 (Iowa 2009)
(finding no need to determine if the statements would fall within rule 5.803(4) by
holding other exceptions applied). However, the State made no claim in the district
court or its appeal that the excited-utterance rule should apply.
15
The foundation required to admit a statement identifying a
perpetrator of domestic abuse under rule 5.803(4) need not be elaborate.
It establishes why the identity of the assailant is important in a domestic
abuse case, as opposed to stranger assault, and what effect that identity
has on diagnosis or treatment. It recognizes there is a difference between
the need to know the cause or external source of the injuries—i.e., “what
happened”—and the need to know the identity of the person causing the
injuries. See United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir. 1980)
(“It is important to note that the statements concern what happened
rather than who assaulted her. The former in most cases is pertinent to
diagnosis and treatment while the latter would seldom, if ever, be
sufficiently related.”). 3 It requires evidence that the identity of the
perpetrator was reasonably pertinent to medical treatment or diagnosis.
We now turn to the evidence in this case.
The trial record in this case shows the nurse and the doctor only
asked M.D. how she was injured, and their treatment efforts that
followed only focused on the physical trauma to her head, arm, and
hand. The nurse also asked three questions pertaining to domestic
abuse in general pursuant to a broader screening protocol. However, the
State offered no evidence that the protocol questions prompted any
treatment of M.D. for her emotional or psychological response to the
injuries or were asked in order to make a diagnosis relating specifically to
domestic assault over other types of assault. In other words, the
foundational evidence relating to her statements only pertained to the
3The United States Court of Appeals for the Eighth Circuit found five years later
that a child-abuse victim who lived in the same household with the abuser was
sufficiently different to fall within the narrow seldom-sufficiently-related category left
open by Iron Shell. Renville, 779 F.2d at 436.
16
treatment she received for her physical injuries, not treatment she might
have needed for her emotional, psychological, or other injuries as a result
of the domestic violence.
M.D. was prescribed antianxiety medication prior to her discharge,
but there was no evidence that the medication pertained to treatment of
domestic abuse rather than the same anxiety as might be felt in a
stranger-assault situation. It would be pure speculation to conclude the
antianxiety medication related to the identity of the perpetrator. The rule
requires that the connection between the statement and the treatment be
“reasonable.” Iowa R. Evid. 5.803(4).
Importantly, there was no evidence to suggest M.D. believed the
identity of the perpetrator was reasonably pertinent to her treatment or
diagnosis. There was no evidence the nurse or doctor told M.D. the
identity of the perpetrator was important to the treatment or diagnosis of
her injuries. There was no evidence the nurse or doctor used the identity
of the perpetrator to treat or diagnosis M.D.’s injuries. In fact, there was
nothing from the circumstances at the hospital to reasonably indicate
M.D.’s treatment or diagnosis would have been different if she had not
mentioned the identity of her perpetrator in describing how she was
injured.
In short, the State presented insufficient evidence that the identity
of the assailant was reasonably pertinent to M.D.’s diagnosis or
treatment. Consequently, the circumstances mandated by the exception
to show M.D. was self-motivated to truthfully describe her assailant were
not established. Without this foundation, the trial court erred in
admitting the portion of the statement that identified Smith as the
assailant.
17
We acknowledge that the general circumstances presented at trial
do not suggest a motivation by M.D. to be untruthful in her identification
of Smith as her assailant to the emergency room nurse and doctor. Her
statements of identity were not prompted by any cues asking for the
identity of the perpetrator, and she only conveyed Smith’s identity as
part of the description of how she was injured. 4 Yet the exception does
not seek to use the absence of a motive to be untruthful, but it requires
evidence of a specific motivation to be truthful derived from its rationale.
We are required to follow rule 5.803(4) as it is written.
This conclusion does not mean the identity of a perpetrator of
domestic abuse can never be admitted into evidence under rule 5.803(4).
It only means that the State must introduce evidence to establish the
necessary foundation regarding both the declarant’s motive in making
the statement and the pertinence of the identification in diagnosis or
treatment. This foundation requires evidence that a statement of identity
was made for the purpose of medical diagnosis or treatment and the
identity was part of a medical history reasonably pertinent to diagnosis
or treatment.
IV. Conclusion.
We conclude the trial court committed legal error by admitting the
hearsay statements of M.D. through the testimony of the emergency
room nurse and doctor without sufficient foundation. This error resulted
in prejudice and requires a new trial. To be fair to both parties, we
decline to consider for the first time on appeal whether the evidence
4M.D. recanted not only the identity of an assailant, but even the existence of an
assault causing her injuries when she testified in court. However, the treating nurse
and physician both testified that M.D.’s injuries were consistent with the description of
the assault that evening.
18
would have been admissible under another exception to the rule against
hearsay. Accordingly, we reverse the judgment and sentence of the
district court and remand for a new trial.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND
REMANDED.
All justices concur except Waterman, Mansfield, and Zager, JJ.,
who dissent.
19
#13–1202, State v. Smith
WATERMAN, Justice (dissenting).
I respectfully dissent. I agree with the court of appeals that the
district court properly allowed the emergency room physician and nurse
to testify regarding the victim’s identification of Smith, her ex-boyfriend
and the father of her child, as her attacker. That information was
elicited pursuant to the hospital’s screening protocol to protect patients
traumatized by suspected domestic abuse. As the medical community
and many other courts have long recognized, identifying the abuser is a
key component in treating the patient’s mental and physical injuries and
ensuring the patient’s safety. The majority errs by holding the district
court abused its discretion by admitting the testimony under Iowa Rule
of Evidence 5.803(4) and misses the opportunity to adopt a categorical
rule allowing medical treatment providers to testify regarding a patient’s
identification of an intimate partner as the assailant. In my view, our
court adopted a categorical rule in child abuse cases, and the rationale
easily extends to adult domestic abuse. I would join the parade of courts
adopting a categorical rule. Our application of this rule of evidence
should evolve in response to the growing understanding and body of
medical literature on intimate-partner violence.
Moreover, even if I agreed with the majority that admission of this
kind of evidence should occur only on a case-by-case basis, I would find
the record here adequate to warrant its admission. The State in this
case laid the requisite foundation for the admission of the evidence under
rule 5.803(4). This case is emblematic of the recurring problem in
domestic abuse cases—a victim who identifies the attacker while
traumatized but then later, controlled by his or her abuser, changes his
or her story or refuses to cooperate with the prosecution. I trust Iowa
20
juries to find the truth. In this case, the jury disbelieved the victim’s trial
testimony that her injuries resulted from falling off a trampoline and
believed what she told her treating physician and nurse the night of her
attack.
I would also affirm the district court ruling allowing the physician
and nurse to testify as to the victim’s identification of her assailant on an
alternative ground the majority understandably declines to reach—the
excited-utterance exception to the hearsay rule. The victim was still
reeling from the assault when she spontaneously identified Smith at the
hospital simply when asked what happened to her. We may affirm an
evidentiary ruling on any valid alternative ground supported by the
record. See DeVoss v. State, 648 N.W.2d 56, 62 (Iowa 2002). The State,
however, did not raise that ground in district court or brief it on appeal,
and the court of appeals did not reach it as to the emergency room
personnel. The majority appropriately chooses to defer deciding the
issue under these circumstances, and nothing in today’s opinion
precludes the State from relying on the excited-utterance exception in
the second trial.
I. Additional Facts.
The majority’s recitation of the facts is truncated. To put the
issues in better context, I will recapitulate what happened to M.D. When
police officers responding to her 911 call arrived at her home at 1 a.m.,
M.D., age twenty-nine, was sitting in her car with her five-year-old
daughter and dog. M.D. was crying, upset, tense, and scared, with
visible injuries—a swelling in her arm and around one eye, and scratches
on her shoulder and knees. She initially told police an intruder had
jimmied the side door lock and attacked her. She said he called her a
“dirty whore,” punched her, knocked her to the floor, and kicked the
21
back of her head repeatedly. She told officers she had blacked out
during the attack and thought her arm was broken. At first she claimed
she did not know her assailant. The officers were skeptical because they
had previously been summoned to M.D.’s home over an altercation with
Trent Daniel Smith, the father of her child. 5 The police persisted in
questioning M.D. and urged her to be honest with them. She indicated
she was afraid of her attacker and told police, “[Y]ou guys can’t protect
me forever.” She then said “Trent Daniel” attacked her. Under further
questioning, M.D., who seemed scared, gave Smith’s full name.
The police officers gave M.D. a ride to the emergency room at Allen
Memorial Hospital for treatment. When she arrived, she was “extremely
shaken up.” Nurse Trisha Knipper asked M.D. what happened and wrote
down that M.D. said she “was assaulted by her baby’s daddy around
midnight.” Knipper, pursuant to the hospital’s protocol, asked M.D.
screening questions that are asked of every patient who presents with a
traumatic injury. M.D. answered that “there was domestic violence going
on,” “she was afraid of or threatened by someone close to her,” “she had
been physically hurt by her baby’s dad,” and “she felt as if someone was
taking advantage of her.”
Approximately eleven minutes after being admitted to the
emergency room, M.D. spoke with Dr. Robert Mott. Dr. Mott asked what
happened, and she replied she “was assaulted by the father of her child.”
She said she was knocked to the ground and kicked in the head and face
multiple times. Dr. Mott noted that she was in a lot of pain and her arm
5Smith was the father of M.D.’s daughter. M.D. and Smith also had a son
together, but the son died.
22
was very tender. No bone fractures were found. M.D. was given
antianxiety medication and discharged at 5 a.m.
At trial eleven months later, M.D. changed her story to claim her
injuries resulted from falling off a trampoline. The jury heard the
testimony of the emergency room nurse and physician and police that
M.D. had identified Smith as her attacker. The jury convicted Smith of
domestic abuse assault and domestic abuse causing bodily injury. The
court of appeals affirmed his convictions, concluding the district court
properly admitted the testimony of the emergency room physician and
nurse under Iowa Rule of Evidence 5.803(4) and that it was harmless
error to admit the police officer’s testimony of M.D.’s identification of
Smith under the excited-utterance exception, rule 5.803(2). I would
affirm the decisions of the district court and court of appeals.
II. The Medical Diagnosis and Treatment Exception.
The fighting issue is whether the patient’s identification of her
assailant is admissible under the hearsay exception for
[s]tatements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.
Iowa R. Evid. 5.803(4). In State v. Tracy, we adopted the Renville two-
part test to establish the admissibility of statements under this
exception:
[F]irst[,] the declarant’s motive in making the statement
must be consistent with the purposes of promoting
treatment; and second, the content of the statement must be
such as is reasonably relied on by a physician in treatment
or diagnosis.
482 N.W.2d 675, 681 (Iowa 1992) (quoting United States v. Renville, 779
F.2d 430, 436 (8th Cir. 1985)). In Renville, the United States Court of
23
Appeals for the Eighth Circuit applied that test to affirm a trial court
ruling that admitted a treating physician’s testimony regarding the child
abuse victim’s identification of her abuser during a medical examination.
779 F.2d at 438–39. As I show below, our decisions in child abuse cases
reach the same conclusion and demonstrate that a domestic abuse
victim’s identification of his or her attacker is admissible under this test.
A. M.D.’s Statement Was Reasonably Pertinent to Medical
Diagnosis or Treatment. The emergency room nurse, Knipper, testified
that M.D., like every patient admitted into the emergency room, was
asked screening questions under the hospital’s standard protocol. These
questions covered topics including domestic violence, suicide, and
workplace injuries. M.D.’s responses indicated she had experienced
domestic violence. Each response was noted in M.D.’s chart. Knipper
testified that she is required to “document complaints and treatment and
diagnoses” on a chart for every patient that enters the hospital. The
chart is maintained as a reference “for continued care” or “for any other
needs that come about.” Knipper’s testimony shows that the
documented responses to these standardized questions are used by the
medical community in crafting a treatment plan and diagnosing the
patient. M.D. replied to the standard questions by identifying Smith.
M.D.’s statement was responsive to the questions being asked, and that
information can be useful for diagnosis or treatment.
Dr. Mott’s testimony showed that he considers the patient’s version
of what happened to be highly relevant to treatment. Dr. Mott testified
regarding how he approaches new patients in the emergency room:
Q. And do you try to find out from the patient what
had happened? A. Absolutely.
Q. Is that necessary for treating the patient? A. That
is key.
24
When M.D. entered the emergency room, Dr. Mott followed his protocol
to determine how to proceed with treatment:
Q. And did you speak with [M.D.] about what had
happened? A. I did.
Q. And what did she say occurred?
MS. LAVERTY: Objection.
THE COURT: Same ruling. Overruled.
Q. You may answer. A. Okay. She said that she was
assaulted by the father of her child, was pretty much the
first thing that she told me.
Q. And did she explain to you how she was assaulted?
A. She stated that she was knocked to the ground. And
then once she was on the ground, then she was kicked in
the head and the face multiple times.
His medical testimony showed that M.D.’s explanation of why she came
to the emergency room was key to determine a proper course of
treatment. See Vasconez v. Mills, 651 N.W.2d 48, 56 (Iowa 2002) (noting
a doctor “who is called to treat and actually treats the patient” may
testify under the hearsay exception because there is an increased
“probability that the patient will not falsify in statements made to his
physician at a time when he is expecting and hoping to receive from him
medical aid and benefit.” (quoting Devore v. Schaffer, 245 Iowa 1017,
1021, 65 N.W.2d 553, 555 (1954))).
M.D. consistently identified Smith as her attacker to medical
personnel that night. That she recanted nearly a year later at trial does
not cast doubt on her motives when seeking treatment the night of her
attack. See Douglas E. Beloof & Joel Shapiro, Let the Truth Be Told:
Proposed Hearsay Exceptions to Admit Domestic Violence Victims’ Out of
Court Statements as Substantive Evidence, 11 Colum. J. Gender & L. 1,
3–4 (2002) (listing reasons why victims recant). The rate of recantation
among domestic violence victims has been estimated between eighty and
ninety percent. Id.; Lisa Marie De Sanctis, Bridging the Gap Between the
25
Rules of Evidence and Justice for Victims of Domestic Violence, 8 Yale J.L.
& Feminism 359, 367 (1996); see also People v. Brown, 94 P.3d 574, 576
(Cal. 2004) (approving the use of expert testimony stating that “[a]bout
80 to 85 percent of victims ‘actually recant at some point in the
process’ ”); State v. Dority, 324 P.3d 1146, 1152 (Kan. Ct. App. 2014)
(noting that a fact finder may use common knowledge that “victims of
domestic violence often recant their initial statements to police” (quoting
State v. Coppage, 124 P.3d 511, 515 (Kan. Ct. App. 2005))).
Dr. Mott and Knipper treated M.D. for her emotional or
psychological response to the attack. She was prescribed antianxiety
medication. The hospital’s screening questions do not exist in a vacuum.
The questions about domestic abuse are asked for a reason—to allow the
treating physicians and nurses to understand what happened and
properly conduct follow-up treatment as necessary. In any event, Rule
5.803(4) does not condition admissibility on a showing that the patient’s
statements given for medical treatment and diagnosis were actually used
for treatment. See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998)
(holding medical diagnosis and treatment hearsay exception applies to
child sex abuse cases because “the identity of the abuser is a matter that
may assist in diagnosis or treatment of an emotional or psychological
injury” (emphasis added)). The context in which the identification is
made is what matters, not what the treating physician and nurse did
with that information.
For these reasons, M.D.’s statements were admissible under the
medical diagnosis and treatment hearsay exception.
B. We Should Adopt a Categorical Rule. A categorical rule
would be a logical extension of our jurisprudence regarding this hearsay
exception’s application to child abuse cases. Our precedents recognize
26
that a statement to a treating physician by a child identifying his or her
abuser is admissible under rule 5.803(4). State v. Tornquist, 600 N.W.2d
301, 306 (Iowa 1999) (holding a child’s “responses in a dialogue initiated
for purposes of diagnosis or treatment” for child abuse “may assist in
diagnosis or treatment”), overruled on other grounds by State v. DeCamp,
622 N.W.2d 290, 293 (Iowa 2001); Hildreth, 582 N.W.2d at 170
(“[A]scertaining the identity of the [child’s] abuser is a matter that may
assist in diagnosis or treatment of an emotional or psychological
injury.”); Tracy, 482 N.W.2d at 682 (“Because of the nature of child
sexual abuse, the only direct witnesses to the crime will often be the
perpetrator and the victim. Consequently, much of the State’s proof will
necessarily have to be admissible hearsay statements made by the victim
to relatives and medical personnel.”); see also Renville, 779 F.2d at 436
(“Statements by a child abuse victim to a physician during an
examination that the abuser is a member of the victim’s immediate
household are reasonably pertinent to treatment.”).
In Tracy, we stressed that a child seeking medical treatment will
generally lack an improper motive, and the identification of an abuser is
reasonably pertinent to medical treatment. 482 N.W.2d at 681. In that
case, a minor told her doctor during an examination that she had been
sexually abused by her stepfather. Id. We concluded the first
requirement is met when “the examining doctor emphasize[s] to the
alleged victim the importance of truthful responses in providing
treatment” and when the “child’s motive in making the statements [is]
consistent with a normal patient/doctor dialogue.” Id.
The second part of the Renville test for admissibility
under rule 803(4) requires that the content of the statement
be such as is reasonably relied on by a physician in
treatment or diagnosis. Where the alleged abuser is a
member of the victim’s immediate household, statements
27
regarding the abuser’s identity are reasonably relied on by a
physician in treatment or diagnosis. Since child abuse often
involves more than physical injury, the physician must be
attentive to treating the emotional and psychological injuries
which accompany this offense. To adequately treat these
emotional and psychological injuries, the physician will often
times need to ascertain the identity of the abuser.
Id. at 681 (emphasis added) (citations omitted). The same reasoning
applies to adult domestic abuse victims.
In Hildreth, A.E., a minor, made several comments that led her
parents to suspect the child had been sexually abused by her
babysitter’s husband, Steven Hildreth. 582 N.W.2d at 168. A.E. was
referred to a therapist, who interviewed A.E. about her recollections of
the abuse and the identity of her abuser. Id. at 169. The trial court
permitted the therapist to testify regarding A.E.’s identification of her
abuser at trial. Id. In affirming the trial court ruling, we emphasized
that “where a child’s statements are made during a dialogue with a
health care professional and are not prompted by concerns extraneous to
the patient’s physical or emotional problem, the first prong of the Renville
test is satisfied.” Id. at 170. We held the second requirement was
satisfied because “ascertaining the identity of the abuser is a matter that
may assist in diagnosis or treatment of an emotional or psychological
injury.” Id.
The justifications expressed in Hildreth and Tracy for a physician
treating child abuse parallel a physician treating adult domestic abuse.
Regarding the first prong, a domestic violence victim has no motive to lie
to a doctor or nurse. The identification of the abuser is “consistent with
a normal patient/doctor dialogue” because standard screening questions
elicit this information. See Tracy, 482 N.W.2d at 681. The second
requirement is met because, as with child abuse, doctors must be
28
attentive to treating the emotional and psychological injuries that
accompany domestic violence.
The United States Court of Appeals for the Tenth Circuit
recognized these similarities in United States v. Joe and explained why a
categorical rule for adult domestic violence logically follows from child
abuse jurisprudence:
[T]he identity of the abuser is reasonably pertinent to
treatment in virtually every domestic sexual assault case,
even those not involving children. All victims of domestic
sexual abuse suffer emotional and psychological injuries, the
exact nature and extent of which depend on the identity of
the abuser. The physician generally must know who the
abuser was in order to render proper treatment because the
physician’s treatment will necessarily differ when the abuser
is a member of the victim’s family or household. In the
domestic sexual abuse case, for example, the treating
physician may recommend special therapy or counseling and
instruct the victim to remove herself from the dangerous
environment by leaving the home and seeking shelter
elsewhere. In short, the domestic sexual abuser’s identity is
admissible under Rule 803(4) where the abuser has such an
intimate relationship with the victim that the abuser’s
identity becomes ‘reasonably pertinent’ to the victim’s proper
treatment.
8 F.3d 1488, 1494–95 (10th Cir. 1993) (footnote omitted). I agree.
We should adopt a categorical rule to allow healthcare providers to
testify as to the adult domestic abuse victim’s identification of an
intimate partner as the assailant. The Louisiana Supreme Court recently
surveyed current medical literature and practices to adopt a categorical
rule that
reflects the current integrated approach to the treatment of
domestic violence cases in the medical community. See
American Medical Association Policy Statement on Family
and Intimate Partner Violence H–515.965 Chicago: AMA
(2014) (advocating that physicians: (a) “Routinely inquire
about the family violence histories of their patients as this
knowledge is essential for effective diagnosis and care; ” and
(e) “Screen patients for psychiatric sequelae of violence and
make appropriate referrals for these conditions upon
identifying a history of family or other interpersonal
29
violence.”) (emphasis added); see also U.S. Dep’t of Health &
Human Serv., Screening for Domestic Violence in Health
Care Settings (August 2013), Office of the Assistant
Secretary for Planning and Evaluation (“Screening and
counseling for domestic violence was first institutionalized in
1992 when the Joint Commission on the Accreditation of
Hospitals and Health Care Organizations (JCAHO) mandated
that emergency departments develop written protocols for
identifying and treating survivors of domestic violence in
order to receive hospital accreditation (Joint Commission,
2009). Since then, many health associations have supported
screening across health care specialties. The American
Medical Association (AMA), American Congress of
Obstetrician Gynecologists (ACOG), and the American
Nurses Association (ANA) all recommend routine universal
screening.”).
State v. Koederitz, 166 So. 3d 981, 985–86 (La. 2015) (footnote omitted).
Mandatory screening procedures, such as the one used in the
emergency room in this case, recognize the harsh reality that many
people are repeatedly victimized by the same person during the domestic
abuse cycle. Approximately two-thirds of people—65.5% of women and
66.2% of men—physically assaulted by an intimate partner are
victimized multiple times by the same partner. See Patricia Tjanden &
Nancy Thoennes, U.S. Dep’t of Justice, Extent, Nature, and Consequences
of Intimate Partner Violence 39 (2000). Domestic violence survivors are
often caught in cycles of violence that may persist for years. The average
female domestic violence survivor reported the domestic violence cycle
involving an intimate partner lasted over 4.5 years, whereas the average
male domestic survivor’s cycle lasted 3.6 years. Id. at 39–40. In
consideration of these sobering statistics, we should adopt a per se rule
that the identification of the perpetrator of domestic violence is pertinent
to medical diagnosis or treatment and admissible under rule 803(4).
Other jurisdictions have reached this conclusion and adopted a
categorical rule. See Joe, 8 F.3d at 1494–95; Moore v. City of Leeds, 1
So. 3d 145, 150 (Ala. Crim. App. 2008) (“We believe that the rationale
30
employed by the [Alabama] Supreme Court in [Ex parte C.L.Y., 928 So. 2d
1069 (Ala. 2005), announcing a categorical rule to admit a child–patient’s
identification of their abuser] would also apply to victims of domestic
violence.”); Nash v. State, 754 N.E.2d 1021, 1025 (Ind. Ct. App. 2001)
(“[I]n cases such as the present one where injury occurs as the result of
domestic violence, which may alter the course of diagnosis and
treatment, trial courts may properly exercise their discretion in admitting
statements regarding identity of the perpetrator.”); Koederitz, 166 So. 3d
at 985–86 (“[W]e see no principled basis for confining statements of fault
under [the medical diagnosis and treatment exception] solely to cases
involving domestic sexual assault, whether of adults or children, as
opposed to other instances of physical assault and abuse taking place in
a context that may be fairly described in terms of domestic violence.”);
People v. Pham, 987 N.Y.S.2d 687, 690–91 (App. Div. 2014) (“Details of
the abuse, even including the perpetrator’s identity, may be relevant to
diagnosis and treatment when the assault occurs within a domestic
violence relationship because the medical provider must consider the
victim’s safety when creating a discharge plan and gauging the patient’s
psychological needs.”); State v. Moen, 786 P.2d 111, 121 (Or. 1990)
(en banc) (“Admissibility of statements of the type challenged here[—i.e.,
a domestic abuse victim identifying her abuser—]is not limited to cases
involving child abuse.”); State v. Bong, No. 33000–1–III, 2015 WL
3819223, at * 5 (Wash. Ct. App. 2015) (“Although statements attributing
fault are generally not relevant to diagnosis or treatment, this court has
found statements attributing fault to an abuser in a domestic violence
case are an exception because the identity of the abuser is pertinent and
necessary to the victim’s treatment.”); State v. Moses, 119 P.3d 906, 911
(Wash. Ct. App. 2005) (same); Oldman v. State, 998 P.2d 957, 961 (Wyo.
31
2000) (“There is no logical reason for not applying [the sexual domestic
abuse exception in Joe] to non-sexual, traumatic abuse within a family
or household, since sexual abuse is simply a particular kind of physical
abuse.”); Commonwealth v. O’Connor, 6 N. Mar. I. 125, 129 (N. Mar. I.
2000) (“[I]n cases of domestic and child abuse . . . the identity of the
abuser becomes ‘reasonably pertinent to diagnosis or treatment[,’] and a
statement identifying the abuser is admissible under the medical hearsay
exception.”). These decisions are persuasive and should be followed.
The majority concludes there are too many variables in domestic
violence cases to adopt a categorical rule, relying on State v. Robinson,
without mentioning the Minnesota Supreme Court in that decision
expressly left open the possibility it would adopt a categorical rule for
domestic abuse cases in the future. 718 N.W.2d 400, 407 (Minn. 2006)
(“We do not foreclose the possibility that we might in the future adopt a
properly limited categorical rule of admissibility under the medical
exception to hearsay for statements of identification by victims of
domestic violence.”).
The majority also refers to “the constitutional right of people
accused of crimes to be confronted by their accusers,” citing for support
State v. Bentley. 739 N.W.2d 296, 300–01 (Iowa 2007). Bentley is
nothing like this case. There, the police investigating child abuse
arranged a “forensic interview” of the ten-year-old victim who was told at
the outset of her interview that “a police officer and a DHS representative
were listening on the other side of the observation window.” Id. at 300.
When the child asked to halt the interview, her interrogator “specifically
implored [the victim] to continue because ‘it’s just really important the
police know about everything that happened.’ ” Id. The interrogator
during breaks consulted with the police officer about additional
32
questions to ask. Id. By contrast, M.D. asked the police to take her to
the emergency room for treatment, and the police had no involvement
when Dr. Mott and nurse Knipper examined her.
The majority cites no case holding that a statement made to a
treating physician or nurse in the emergency room is “testimonial” for
purposes of the Confrontation Clause. By definition, a statement made
for purposes of medical treatment or diagnosis is not testimonial, as the
Louisiana Supreme Court observed: “The statements at issue in the
present case are also non-testimonial for purposes of the Sixth
Amendment Confrontation Clause because they were not ‘procured [with
a] primary purpose of creating an out-of-court substitute for trial
testimony.’ ” Koederitz, 166 So. 3d at 986–87 (quoting Michigan v.
Bryant, 562 U.S. 344, 358, 131 S. Ct. 1143, 1155, 179 L. Ed. 2d 93, 107
(2011) (emphasis added)); see Bryant, 562 U.S. at 358–59, 131 S. Ct. at
1155, 179 L. Ed. 2d at 107 (“In making the primary purpose
determination, standard rules of hearsay, designed to identify some
statements as reliable, will be relevant.”); White v. Illinois, 502 U.S. 346,
356, 112 S. Ct. 736, 743, 116 L. Ed. 2d 848 (1992) (“[A] statement made
in the course of procuring medical services, where the declarant knows
that a false statement may cause misdiagnosis or mistreatment, carries
special guarantees of credibility that a trier of fact may not think
replicated by courtroom testimony.”); cf. Melendez–Diaz v.
Massachusetts, 557 U.S. 305, 312 n.2, 129 S. Ct. 2527, 2533 n.2, 174
L. Ed. 2d 314 n.2 (2009) (“[M]edical reports created for treatment
purposes . . . would not be testimonial under our decision today.”); Giles
v. California, 554 U.S. 353, 376, 128 S. Ct. 2678, 2692–93, 171 L. Ed. 2d
488 (2008) (“[O]nly testimonial statements are excluded by the
Confrontation Clause. Statements to friends and neighbors about abuse
33
and intimidation [by women in abusive relationships], and statements to
physicians in the course of receiving treatment would be excluded, if at
all, only by hearsay rules . . . .”). In any event, in this case, M.D.,
Dr. Mott, and nurse Knipper all testified live at trial subject to cross-
examination. The majority’s reference to the Confrontation Clause is a
red herring.
III. Excited-Utterance Exception.
Under the DeVoss rule, we may affirm an evidentiary ruling under
any valid alternative ground supported in the record. See State v.
Newell, 710 N.W.2d 6, 23 (Iowa 2006) (“Although we base our decision on
a different rationale, we find no reversible error in the trial court’s
ruling.”); DeVoss, 648 N.W.2d at 62–63 (noting that evidentiary rulings
are an exception to our error preservation requirements and the district
court ruling will be upheld if sustainable on any ground). In my view,
M.D.’s statements to her doctor and nurse identifying Smith as her
abuser were admissible under the excited-utterance exception. Iowa R.
Evid. 5.803(2). 6
An excited utterance is “[a] statement relating to a startling event
or condition made while the declarant was under the stress of excitement
caused by the event or condition.” Id. “[S]tatements made under the
stress of excitement are less likely to involve deception than if made upon
reflection or deliberation.” State v. Harper, 770 N.W.2d 316, 319 (Iowa
2009) (quoting State v. Tejeda, 677 N.W.2d 744, 753 (Iowa 2004)). We
6When an alternative ground supports a ruling admitting evidence, the
proponent should brief and argue the alternative ground on appeal. Otherwise, our
court may defer deciding the issue until a case in which we have the benefit of
adversarial briefing.
34
consider five nonexclusive factors in determining whether a statement
qualifies as an excited utterance:
(1) the time lapse between the event and the statement,
(2) the extent to which questioning elicited the statements
that otherwise would not have been volunteered, (3) the age
and condition of the declarant, (4) the characteristics of the
event being described, and (5) the subject matter of the
statement.
Id. (quoting State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999)).
Our court considered a similar fact pattern in Atwood. Atwood
was charged with vehicular homicide after killing two pedestrians. 602
N.W.2d at 777. Atwood’s passenger, Chris Sivertsen, was hospitalized.
Id. at 782. A police officer interviewed Sivertsen approximately two and
one-half hours after the accident. Id. The officer spoke with Sivertsen
for about four to six minutes. Id. The officer asked Sivertsen what
happened, and Sivertsen responded the defendant “jerked the wheel—or
steering wheel way too hard and I thought he was mad.” Id. We held the
statement was admissible. Id. at 783. We noted that Sivertsen had been
through a very traumatic experience; “he had just been involved in a
serious car accident and had apparently seen a child hit the windshield.”
Id. We did not find that the time-lapse or the officer’s question brought
the statement outside the excited-utterance exception. Id. at 782. 7
7We have applied the excited-utterance exception after significantly longer time-
lapses. See State v. Galvan, 297 N.W.2d 344, 347 (Iowa 1980) (holding the passage of
two days “leaves [the evidence] close enough to the transaction so that the trial court
could have believed any presumption of fabrication was excluded”); State v. Stafford,
237 Iowa 780, 785–87, 23 N.W.2d 832, 835–86 (1946) (holding statements made
fourteen hours following the alleged crime satisfied “the test of spontaneity” and were “a
natural expression of what had happened to [the victim]”). But see Tejeda, 677 N.W.2d
at 754 (finding a thirty-minute time gap between the startling event and the statement
“weigh[s] heavily against the [statement’s] admission”).
35
The circumstances surrounding M.D.’s statements show her
statements to Knipper and Dr. Mott were excited utterances. M.D. was
extremely upset from the time she called 911 through her emergency
room visit. She was anxious, in pain, and separated from her daughter
in the middle of the night. Against this backdrop, M.D. twice identified
Smith as her abuser in response to the first question asked by the nurse
and then to another asked by the doctor—“what happened?” The
substance of M.D.’s statement was the very reason she was so upset—
because she had been assaulted by her intimate partner, the father of
her child. We have found the excited-utterance exception applies in
similar circumstances. See State v. Richards, 809 N.W.2d 80, 95 (Iowa
2012) (holding domestic violence victim’s statement to her daughter that
the defendant had put a cane to her neck was an admissible excited
utterance because the victim had just come down the stairs, she “was
upset and crying,” and her “neck was red”).
Accordingly, I would affirm the district court’s admission of those
statements as excited utterances. I agree with the court of appeals that
any error in allowing the police officer to testify about what M.D. told him
was harmless error. For these reasons, I would affirm the judgment of
the district court and decision of the court of appeals.
Mansfield and Zager, JJ., join this dissent.
State of Iowa v. Trent D. Smith
Court: Supreme Court of Iowa
Date filed: 2016-03-04
Citations: 876 N.W.2d 180, 2016 Iowa Sup. LEXIS 26
Copy CitationsCombined Opinion